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No EU Law Controversy regarding GMC Proposals – Yet!

Is medicine practised differently in the UK than in other countries? The GMC, in their first ever report on The State of Medical Education and Practice 2011, appear to think so. Further, the GMC concluded that many overseas doctors have problems adjusting to the cultural, ethical and professional environment in the UK. Accordingly, the GMC believe that “More needs to be done to ensure consistency of induction for overseas trained doctors, so that they can gain an early understanding of the ethical and professional standards they will be expected to meet, as well as familiarity with how medicine is practiced in the UK.”

The media reporting inevitably focused on the recommendation contained in this report that doctors should undertake an induction programme before commencing work in the UK health service, in particular the fact that “foreign doctors” would have to undertake the induction programme.

However, the GMC in their report are relatively clear that all doctors starting work, including those who have just qualified in the UK, would have to undertake the induction programme. At present, there is no suggestion that doctors will have to undertake any form of assessment during the programme, or indeed that doctors would have to do anything other than attend the programme in order to be permitted to work in the UK health service. Accordingly, it seems difficult to see how the requirement to attend the programme alone could be said to operate to the particular detriment of migrant workers, or to place migrant workers at a disadvantage.

However there is a real EU law story buried in the report. The GMC say that they are currently “prevented by EU law” from assessing the language skills of doctors from the EU. This is presumably a reference to Directive 2005/36/EC regarding the mutual recognition of professional qualifications.

The effect of the Mutual Recognition Directive is that if a doctor holds a qualification listed in Annex V of the Directive and meets the minimum training requirements, they are entitled to be registered as a doctor in the UK on the basis of mutual recognition. Annex V is silent on the subject of language requirements, although Article 53 of the Directive provides that: “Persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State”. It is also noteworthy that throughout the Directive there is an emphasis on public health and safety.

Under EU Law generally, whilst language requirements are prima facie indirectly discriminatory, they can often be justified (see for example Groener v Minister for Education C – 379/87) This is expressly recognised by Article 3(1) of Regulation 1612/68 which provides that the principle of equal treatment of foreign nationals does not apply to ‘conditions relating to linguistic knowledge required by reason of the nature of the post to be filled’.

At present the GMC only require non-EU doctors to satisfy the GMC that they have the necessary knowledge of English before they can be registered with the GMC. The GMC state that they believe that this situation needs to change and that “the GMC is currently working with the Department of Health (England) in an attempt to resolve this. It is unacceptable that the current system enables doctors to practise in the UK without a sufficient grasp of English.” If the GMC do decide to impose language tests on EU doctors, then it will be interesting to see whether they will be able to justify this requirement under Article 3(1) of Regulation 1612/68 or in terms of an actual risk to public health and safety.